Argument for Plaintiff in Error.

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any particular distances were too high, the board should have addressed itself to the task of reducing such rates, grading them according to distances; this because, as the court judicially knows, short hauls and deliveries cost more than long hauls. Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 168.

This court has jurisdiction to review on writ of error. The Florida law provides that: "All rules and regulations made and prescribed by said commissioners for the transportation of persons and property on the railroads subject to the provisions of this act or to prevent unjust discrimination or other abuses by them shall be deemed and held to be prima facie reasonable and just."

If the commission make a freight rate which, on its face, is prima facie unreasonable and unjust, certainly the Supreme Court of Florida could not take away from this court the right to pass upon this question by declaring that said rates were just and reasonable. If the Florida court had any such power as this all questioning of the conduct of a state commission would end with the state courts, and there would be no such thing as Federal jurisdiction over cases of this class.

In no case has such a sweeping straight rate as this been sustained. If upheld now, the decision will greatly simplify the duties of state boards in the future, but the rule here laid down seems to us to be totally inconsistent with the ideas of equity and fair play heretofore exacted of all bodies entrusted with the delicate and difficult task of dealing with the property rights of others. Lake Shore v. Smith, 173 U. S. 695, 696.

The order of the board must be taken as a whole, and if in any part of it it is unjust and without warrant, the whole must fall. The commission made this unfair order. There was no reason why it should not have made it just and fair. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; Pacific Ry. (C. C.), 64 Fed. Rep. 188.

When the state railroad commission in Mississippi sought to compel a telegraph company to keep open a particular office as part of a system, the state court held that the com

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Argument for Plaintiff in Error.

pany could not be compelled to do business at a loss even in that one little office. W. U. Tel. Co. v. Railroad Commission, 74 Mississippi, 80.

This official report in evidence is uncontradicted. Altogether the Seaboard Air Line Railway constitutes a great system extending with many branches through Virginia, North Carolina, South Carolina, Alabama and Florida. Its present funded debt amounts in round numbers to some $61,000,000 besides its stock; whereas its total cost of construction is given in round numbers at some $7,000,000 less— $54,000,000. But this is by no means proof of overcapitalization. The fair conclusion is, there being no evidence to the contrary, that the system as a whole is worth not only the amount it actually cost in dollars and cents to construct and equip it, but the amount it cost its owners and at which it was capitalized; because, like other great systems of railways, it was extended into an undeveloped country and over desirable lines, upon the credit of the company, the company utilizing its credit by raising money on its bonds, which money was used in buying and building connecting roads, in operating them for a considerable period of time, during which they did not and could not be expected to pay interest on the money invested, the enterprising managers of the system in the meanwhile counting on the future development of the country for a return of their investments. See Met. Trust Co. v. The Houston & T. C. R. Co., 90 Fed. Rep. 168.

In estimating the value of the property on which a railroad company is entitled to earn a return from tariff rates, the following authorities show that the cost of bare physical reproduction is too narrow a basis: Milwaukee Electric R. & Light Co. v. Milwaukee, 87 Fed. Rep. 577, 585; Ames v. Union P. R. Co., 64 Fed. Rep. 165; Smyth v. Ames, 169 U. S. 547; Chicago, B. & Q. R. Co. v. Dey, 38 Fed. Rep. 656.

Railway companies should be allowed to earn something by way of dividends in addition to paying operating and maintaining expenses, interest on outstanding bonds, and taxes.

Argument for Defendant in Error.

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Chicago & N. W. R. Co. v. Dey, 35 Fed. Rep. 866; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; Louisville & N. R. Co. v. Brown, 123 Fed. Rep. 951; Southern Pacific v. Railroad Commissioners, 78 Fed. Rep. 263.

Mr. J. M. Barrs, with whom Mr. W. H. Ellis, Attorney General of the State of Florida, was on the brief, for defendant in error in this case and in No. 9, argued simultaneously herewith:1

The authority of the railroad commissioners, under the constitution and laws of Florida, to make and enforce rates for the transportation of freight and passengers from points in Florida to points in Florida, is limited only by the provisions of the Federal Constitution against the taking of property without due process of law; the right of the State to enforce the orders of the state railroad commission by mandamus instituted originally in the Supreme Court of the State; the regularity of the proceeding before the railroad commission preliminary to the making of its orders; and the prima facie correctness, justice and validity of the orders of the commission, and the duty of the courts to enforce the orders of the commission, in the absence of an affirmative showing before the court made by the defendant in a mandamus proceeding sufficient to overcome the prima facie validity of the orders of the commission,-are, we understand, not questioned by the plaintiff in error, and are entirely manifest by reference to the constitution and laws of Florida, and cannot be reviewed by this court. Florida Laws, 1899, ch. 4700, p. 76.

This court is precluded from reviewing the judgment of the Supreme Court of Florida on the second assignment of error. Tripp v. Santa Rosa St. R. Co., 144 U. S. 126; Iowa Cent. R. Co. v. Iowa, 160 U. S. 389; Grand Rapids, etc., R. Co. v. Butler, 159 U. S. 87; Wood v. Brady, 150 U. S. 18; Gibson v. Mississippi, 162 U. S. 565; French v. Hopkins, 124 U. S. 524; Læber v.

1 See p. 256, ante.

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Argument for Defendant in Error.

Schrader, 149 U. S. 580; Thorington v. Montgomery, 147 U. S. 490; McNulty v. California, 149 U. S. 645; Northern Pacific R. Co. v. Patterson, 154 U. S. 130; O'Neill v. Vermont, 144 U. S. 323; Hibbin v. Smith, 191 U. S. 310; Smith v. Indiana, 191 U. S. 138.

The third, fourth, fifth, sixth and seventh assignments of error are in effect the same, and all are based on the final decision of the Supreme Court of Florida. The eighth is a blanket assignment which covers all the others. No Federal question of law is raised by any of the assignments. The Supreme Court of Florida found the facts as stated in its opinion and that finding is conclusive in this court. Hall v. Jordan, 15 Wall. 393; Carpenter v. Williams, 9 Wall. 785; Republican River Bridge Co. v. Kansas Pac. R. Co., 92 U. S. 315; Martin v. Marks, 97 U. S. 345; Kenney v. Effinger, 115 U. S. 577; Quimby v. Boyd, 128 U. S. 488; Dower v. Richards, 151 U. S. 658; Hedrick v. Atchison &c. R. Co., 167 U. S. 673; Atchison &c. R. Co. v. Matthews, 174 U. S. 96; Backus v. Fort St. Union Depot Co., 169 U. S. 557; Egan v. Hart, 165 U. S. 188; In re Buchanan, 158 U. S. 31; Chicago &c. R. Co. v. Chicago, 166 U. S. 226; Missouri &c. R. Co. v. Haber, 169 U. S. 513.

The Supreme Court of Florida, in their original jurisdiction of mandamus cases, are the judges of the fact as well as of the law. Columbia County v. Suwannee County, 21 Florida, 1.

The Supreme Court of Florida in their opinion in this case, did not enunciate any questionable principles of law. The opinion is limited almost, if not quite, to their findings of facts based on the testimony of the plaintiff in error before them.

Plaintiff in error has not shown sufficient facts to reverse the judgment of the Supreme Court of Florida, if the court should decide, contrary to our contention, and that the points raised in the case are questions of mixed law and fact and properly reviewable by this court. Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418; Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339; Reagan v. Farmers' Loan & T. Co., 154 U. S. 362; St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649; Covington

& L. Tr. Co. v. Sanford, 164 U. S. 578; Smyth v. Ames, 169 U. S. 466; San Diego L. & T. Co. v. Jasper, 189 U. S. 439.

If this court could go back of the findings of fact of the Supreme Court of Florida, it would be found that the Seaboard Air Line Railway introduced in evidence to sustain its plea or return absolutely nothing even tending to sustain the same, confining itself to the introduction in evidence of two printed reports, the one being a report of that company filed with the Florida Railroad Commission for the year ending June 30, 1904, and the other the report of the state railroad commission for the year ending March 1, 1904. Neither of those reports have the slightest relevancy to the issue in the cause.

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

There are no special findings of facts in these cases, and only from an examination of the opinions filed by the Supreme Court can we ascertain what its conclusions were or upon what its judgments were based. It may well be doubted whether a railroad company can rely, as evidence in its own behalf, upon a report made and filed by it, and while a report of the railroad commission to the Governor may undoubtedly be used against it in an application made at its instance to secure compliance with one of its orders, yet there is little in its report which throws light upon the questions in these cases.

Referring to the first case, in which is presented the reasonableness of an order made by the commission respecting local rates for business on, to or from the Florida West Shore Railway, we find it stated in the brief of the plaintiff in error that the railroad commission on December 22, 1903, made an order, to go into effect July 1, 1904, reducing local freight rates generally; that from this order no appeal was taken; that in November, 1903, an order was made reducing by ten per cent rates on certain freights going over two or more roads, and that from such order no appeal was taken. These are the